A Blog About Intellectual Property Litigation and the District of Delaware

Not today litigants
Not today litigants Pavel Kononenko, Unsplash

We've noted previously that it is tremendously difficult to win a motion for interlocutory appeal in Delaware (and pretty much everywhere else). So it comes as no surprise that litigants—innovators all—will occasionally come up with new ways to achieve the same result without all the difficulties attendant with actually moving. We now know that at least one of these methods does not work.

The parties in Malvern Panalytical, Inc. v. TA Instruments-Waters LLC, C.A. No. 19-2157-RGA (D. Del.) filed a joint stipulation dismissing the 5-patent case following a claim construction opinion that apparently definitively absolved the defendant of infringing 2 of the patents. Id., D.I. 163. The stipulation, however, only dismissed the claims as to those 2 patents with prejudice while specifically reserving the plaintiff's right to "reassert the [remaining] [p]atents in the future, including in the event of a reversal and remand to this Court following the expected appeal from the final judgment entered pursuant to this Joint Stipulation of Non-Infringement." Id.

Despite that fact that this was a joint stipulation which would have nominally resolved the entire case, Judge Andrews rejected the stipulation in a brief order, stating:

The Court is not inclined to sign a stipulation that dismisses three patents without prejudice so the other two can be appealed. It appears to me that is just allowing for what is essentially an interlocutory appeal.
The parties are requested to submit something, jointly or separately, on a schedule they agree upon, explaining why I should approve the stipulation as is, or, if the other three patents are just fluff, why the three shouldn’t be dismissed with prejudice.

Id., D.I. 165.

So for now at least, it seems that there is no workable substitute to requesting interlocutory appeal the old-fashioned way.

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